Kinney v. J.S. Reeves & Co.

• Decision Date: 02 February 1904
• Citation: 139 Ala. 386,36 So. 22
• Parties: KINNEY ET AL. v. J. S. REEVES & CO. ET AL.
• Court: Alabama Supreme Court

36 So. 22

139 Ala. 386

KINNEY ET AL. v. J. S. REEVES & CO. ET AL.

Supreme Court of Alabama

February 2, 1904

Appeal from Chancery Court, Cullman County; W. H. Simpson, Chancellor.

Bill by J. S. Reeves & Co. and others against P. H. Kinney and others. From a decree sustaining one ground of a demurrer interposed by defendants to the bill and overruled as to the other grounds, defendants appeal. Dismissed.

George H. Parker, for appellants.

DOWDELL, J.

The appeal in this case is taken from the decree of the chancellor on the demurrer to the bill. The demurrer was single, and contained six grounds or assignments, each of which went to the bill in its entirety. The decree in terms overruled the first five grounds, but sustained the sixth. Where a demurrer contains more than one ground or assignment, and all of which are addressed to the bill as a whole, the sustaining of any one ground is a sustaining of the demurrer. Coleman v. Butt, 130 Ala. 266, 30 So. 364. The decree on the demurrer was favorable to the respondents, appellants here, and they cannot complain. Until the bill has been amended in conformance with the ruling on the demurrer, the complainants cannot proceed with the cause, and, failing or refusing to amend, it is subject to be dismissed on respondents' motion for want of prosecution. If, after the bill has been amended, the respondents should desire to do so, they may properly renew the demurrer to the bill as amended on those grounds which were overruled, and in this manner have the question reviewed, if the demurrer is overruled. The appellants can take nothing by this appeal. See Watson v. Jones Bros., 121 Ala. 579, 25 So. 720; Ferris v. Hoglan, 121 Ala. 240, 25 So. 834; Cottingham v. Greely, 123 Ala. 479, 26 So. 514.

Appeal dismissed.